The Curtiss-Wright Case.

Further Court support of the Hamiltonian view was advanced in United States v. Curtiss-Wright Export Corp.,28 in which Justice Sutherland posited the doctrine that the power of the National Government in foreign relations is not one of enumerated powers, but rather is inherent. The doctrine was then combined with Hamilton’s contention that control of foreign relations is exclusively an executive function with obvious implications for the power of the President. The case arose as a challenge to the delegation of power from Congress to the President with regard to a foreign relations matter. Justice Sutherland denied that the limitations on delegation in the domestic field were at all relevant in foreign affairs:

“The broad statement that the Federal Government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. . . . That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. . . .”

“As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. . . .”

“It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have been vested in the Federal Government as necessary concomitants of nationality. . . .”

“Not only . . . is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.”29

Scholarly criticism of Justice Sutherland’s reasoning has demonstrated that his essential postulate, the passing of sovereignty in external affairs directly from the British Crown to the colonies as a collective unit, is in error.30 Dicta in later cases controvert the conclusions drawn in Curtiss-Wright about the foreign relations power being inherent rather than subject to the limitations of the delegated powers doctrine.31 The holding in Kent v. Dulles32 that delegation to the Executive of discretion in the issuance of passports must be measured by the usual standards applied in domestic delegations appeared to circumscribe Justice Sutherland’s more expansive view, but the subsequent limitation of that decision, though formally reasoned within its analytical framework, coupled with language addressed to the President’s authority in foreign affairs, leaves clouded the vitality of that decision.33 The case nonetheless remains with Myers v. United States the source and support of those contending for broad inherent executive powers.34

Footnotes

28
299 U.S. 304 (1936). [Back to text]
29
299 U.S. at 315–16, 318, 319. [Back to text]
30
Levitan, The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 YALE L. J. 467 (1946); Patterson, In re United States v. Curtiss-Wright Corp., 22 TEXAS L. REV. 286, 445 (1944); Lofgren, United States v. Curtiss-Wright Corporation: An Historical Reassessment, 83 YALE L. J. 1 (1973), reprinted in C. LOFGREN, GOVERNMENT FROM REFLECTION AND CHOICE: CONSTITUTIONAL ESSAYS ON WAR, FOREIGN RELATIONS, AND FEDERALISM 167 (1986). [Back to text]
31
E.g., Ex parte Quirin, 317 U.S. 1, 25 (1942) (Chief Justice Stone); Reid v. Covert, 354 U.S. 1, 5–6 (1957) (plurality opinion, per Justice Black). [Back to text]
32
357 U.S. 116, 129 (1958). [Back to text]
33
Haig v. Agee, 453 U.S. 280 (1981). For the reliance on Curtiss-Wright, see id. at 291, 293–94 & n.24, 307–08. But see Dames & Moore v. Regan, 453 U.S. 654, 659–62 (1981), qualified by id. at 678. Compare Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act as not precluding judicial review of constitutional challenges to CIA Director’s dismissal of employee, over dissent relying in part on Curtiss-Wright as interpretive force counseling denial of judicial review), with Department of the Navy v. Egan, 484 U.S. 518 (1988) (denying Merit Systems Protection Board authority to review the substance of an underlying security-clearance determination in reviewing an adverse action and noticing favorably President’s inherent power to protect information without any explicit legislative grant). In Loving v. United States, 517 U.S. 748 (1996), the Court recurred to the original setting of Curtiss-Wright, a delegation to the President without standards. Congress, the Court found, had delegated to the President authority to structure the death penalty provisions of military law so as to bring the procedures, relating to aggravating and mitigating factors, into line with constitutional requirements, but Congress had provided no standards to guide the presidential exercise of the authority. Standards were not required, held the Court, because his role as Commander-in-Chief gave him responsibility to superintend the military establishment and Congress and the President had interlinked authorities with respect to the military. Where the entity exercising the delegated authority itself possesses independent authority over the subject matter, the familiar limitations on delegation do not apply. Id. at 771–74. [Back to text]
34
That the opinion “remains authoritative doctrine” is stated in L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 25–26 (1972). It is used as an interpretive precedent in AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD
) OF THE LAW, THE FOREIGN RELATIONS LAW OF THE UNITED STATES see, e.g., §§ 1, 204, 339 (1987). The Restatement is circumspect, however, about the reach of the opinion in controversies between presidential and congressional powers.
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